To understand the issues in this
case, a brief summary of the legal background is necessary.(1)
In 1986, Congress passed the Columbia River Gorge National Scenic Act, 16 USC
§§ 544-544p, which created the Columbia River Gorge National Scenic Area in
Oregon and Washington. The purpose of the Act was to protect the scenic,
cultural, recreational, and natural resources of the Columbia River Gorge, and
to protect and support the economy of the area by encouraging growth in
existing urban areas and by allowing future economic development while
protecting the area's resources. 16 USC § 544a.

As authorized by the Act, Oregon and
Washington established the Columbia River Gorge Commission, and, in 1991, the commission
adopted a management plan for the Columbia River Gorge. The Act requires the commission
to undertake a comprehensive review of the management plan at least every ten
years and authorizes the commission to make any necessary revisions, subject to
the review and concurrence of the Secretary of Agriculture. 16 USC § 544d(g).
In accordance with that requirement, over the next few years, the commission
reviewed whether and in what ways the management plan should be revised, and,
in 2004, the commission adopted certain revisions to the plan.

"The Commission must find the following criteria are
satisfied before it approves an amendment to the Management Plan:

"(1) Conditions in the Scenic Area have significantly
changed. This means:

"* * * * *

"(b) new information or inventory data
regarding land uses or resources that could result in a change of a plan
designation, classification, or other plan provision;

"* * * * *

"(2) The proposed amendment is consistent with the
purposes and standards of the Scenic Area Act; and

"(3) No practicable alternative to the proposed
amendment more consistent with the purposes and standards of the Scenic Area Act
exists."

Under that authority, the commission
has amended the management plan a number of times. As pertinent here, in 2005,
the owner of the View Point Inn, a building in Multnomah County that is listed
on the National Register of Historic Places, submitted an application to the commission
to amend the management plan to permit him to use the property for a commercial
purpose consistent with its historic use as an inn and a restaurant. The
application proposed an amendment to the management plan that would have
allowed historic properties in the scenic area that were listed on the National
Register before November 17, 1986, to be used for restaurant or hotel purposes
if that is how the property had been used historically. The application also
stated that the purpose of the proposal was to allow the View Point Inn to
generate sufficient income to support its restoration.

In this case, the purpose of the
initial View Point Inn proposed plan amendment was to allow an adaptive reuse
of that property in a manner likely to generate enough revenue to support the
restoration of the structure. The commission found that its own modification
to the initial proposed plan amendment, PA 05-02, was a practicable alternative
to that initial, limited proposal because it was consistent with the purposes of
that proposal. The commission also found that PA 05-02 was more consistent
with the Act because it provided protection and enhancement of cultural
resources not covered by the initial View Point Inn proposal and contained
criteria designed to ensure that permissible uses of historic properties did
not adversely affect other resources in the scenic area.

Finally, the commission considered
and rejected several other proposed modifications to the View Point Inn plan
amendment, including "an alternative" (which the commission summarized
by listing nine key elements) that Friends had suggested, on the ground that
they were not practicable alternatives to the initial proposed plan amendment
or that they were not more consistent with the purposes and standards of the
Act than the commission's own proposed modification. In the end, the commission
found

"that there is no practicable alternative to [PA 05-02]
that is more consistent with the purpose and standards of the Act. [PA 05-02]
provides the most comprehensive protection to historic resources of any
alternatives considered, while also being consistent with the purpose of the
Applicant's Proposed Plan Amendment. For these reasons, the Commission
concludes that [PA 05-02] satisfies the requirements of [OAR 350-050-0030(3)]."

Third, the commission found that PA
05-02 was consistent with the purposes and standards of the Act, OAR 350-050-0030(2),
insofar as it allows historic buildings to be used in a manner that protects
their historic integrity and facilitates public appreciation of those buildings
as significant cultural resources. At the same time, by requiring that the new
uses of historic buildings meet new and existing guidelines protecting other
scenic, cultural, natural, and recreational resources in the scenic area, PA
05-02 ensures that the additional uses of the historic buildings permitted in
the plan amendment do not adversely affect those other resources. Finally, the
commission found that, by allowing limited commercial uses of historic
buildings, PA 05-02 also was consistent with the second purpose of the Act, to
protect and support the economy of the area.

Having made those findings, the commission
approved PA 05-02, which added provisions to the management plan permitting
certain new commercial uses of historic buildings in the GMA. First, PA 05-02 added
the following policy statement to the chapter in the management plan dealing
with cultural resources:

"20. Provide incentives to protect and enhance
historically significant buildings by allowing uses of such buildings that are
compatible with their historic character and that provide public appreciation
and enjoyment of them as cultural resources."

Part I, ch 2 (Cultural Resources), GMA Provisions, GMA
Policies 20. In addition, it added a new section to the management plan that,
among other things, expressly permits the following commercial uses of historic
buildings:

"GMA Guidelines

"Additional Review Uses for Historic Buildings

"1. Properties in all GMA land use designations except
Open Space and Agriculture-Special with buildings included on the National
Register of Historic Places shall be permitted to be open to the public for viewing,
interpretive displays, and an associated gift shop * * *, subject to compliance
with the applicable guidelines to protect scenic, cultural, natural and
recreation resources [and other protective guidelines].

"3. Properties in all GMA land use designations except
Open Space and Agriculture-Special with buildings included on the National
Register of Historic Places shall be permitted to hold commercial events, subject
to compliance with the applicable guidelines to protect scenic, cultural,
natural and recreation resources [and other protective guidelines].

Friends sought judicial review in the
Court of Appeals of the commission's final order adopting PA 05-02. In that
court, Friends interposed three objections to the adoption of the plan
amendment: (1) that conditions in the scenic area had not changed
significantly enough to warrant amendment of the management plan under OAR
350-050-0030; (2) that the commission improperly rejected or failed to consider
all practicable alternatives to PA 05-02 before adopting that amendment; and
(3) that the plan amendment is not consistent with the purposes and standards
of the Act. The Court of Appeals rejected all three arguments.

Before this court, Friends has
abandoned its first argument, viz., that the commission did not have
authority to adopt PA 05-02 because conditions in the scenic area had not
changed significantly enough to justify amending the management plan. Friends now
limits its focus to its second and third arguments. Specifically, Friends argues
that, because the commission did not discuss certain of Friends' proposed
alternatives to PA 05-02 in its final order adopting PA 05-02, it failed to
carry out its duty under OAR 350-050-0030(3) to determine that "[n]o practicable
alternative to the proposed amendment more consistent with the purposes and
standards of the Scenic Area Act exists." Friends also contends that the commission
failed to carry out its duty under OAR 350-050-0030(2) to ensure that "[t]he
proposed amendment is consistent with the purposes and standards of the Scenic
Area Act," insofar as PA 05-02 permits certain commercial uses of
resources in areas zoned for agricultural, forest, public recreation, and
residential uses notwithstanding what Friends contends is the Act's mandate to
allow large scale commercial uses only in urban areas and other areas zoned for
such uses and notwithstanding the Act's requirement to protect and enhance
agricultural and forest land for agricultural and forest uses.

Before we address Friends' substantive
challenges to the commission's final order, we first consider two preliminary objections
that Friends raises to the standards of review that the Court of Appeals used
in evaluating its claims. Friends contends that the Court of Appeals erred in holding
that, to succeed on a claim that PA 05-02 violates the Act, Friends must
demonstrate that the plan cannot be applied consistently with the Act under any
circumstance. Friends asserts that that standard is unduly restrictive. Rather,
Friends asserts, it need only show that the challenged policies and guidelines
depart from or contravene a legal standard expressed or implied in the Act. Friends
also argues that the Court of Appeals further erred in holding that, when commission
actions are reviewed in Oregon courts, the deferential standard of review set
out in Chevron USA, Inc. v. Natural Res. Def. Council, 467 US 837, 104 S
Ct 2778, 81 L Ed 2d 694 (1984), applies. Under that standard of review, when a
federal agency has been charged by Congress with implementing a federal
statute, courts are to defer to that agency's interpretation of the statute,
treating it as controlling, as long as it is reasonable. On that point,
Friends argues that, because the commission is not, strictly speaking, a federal
agency charge by Congress with implementing a federal law, this
court should apply Oregon's statutory construction methods to the commission's
interpretations of the Act.

This court considered both those
contentions in Friends of Columbia Gorge v. Columbia River (S055722), 346
Or __, __ P3d __ (2009) (Friends (S055722)) (decided this date). With
respect to the first, we agreed with Friends and held that the stringent
standard of review that the Court of Appeals used is not appropriate to the
issues on review. We will not repeat that lengthy discussion here. It is
sufficient for the purposes of this case to state that the management plan,
both in its original and its revised (and, in this case, amended) form, is much
like a "rule" as that term is defined in the Oregon APA: "any
agency directive, standard, regulation or statement of general applicability
that interprets or prescribes law or policy, or describes the procedure or
practice requirements of any agency." ORS 183.310(9). Friends (S055722),
346 Or at ___ (slip op at 10). Moreover, we observed, the plan was adopted and
revised by the commission through a process that is similar to the rulemaking
process prescribed in the Oregon APA at ORS 183.335. Id. We concluded
that, although the commission is not a state agency that is directly subject to
the Oregon APA, Friends' challenges to the management plan (and its revisions
and amendments) nevertheless are analogous to typical "facial"
challenges to the validity of a rule under the Oregon APA. Therefore, in
reviewing the commission's action under ORS 196.115(c) to (e), the court must
consider the legal standard that a court would use in judicial review of a rule
under the APA: whether the commission "departed from a legal standard
expressed or implied in the particular law being administered, or contravened
some other applicable statute." Id. at ___ (slip op at 11), quoting
Planned Parenthood Assn. v. Dept. of Human Res., 297 Or 562, 565, 687
P2d 785 (1984). That standard, we held, was the appropriate one to apply to
Friends' facial challenge to the lawfulness of the management plan, rather than
the "under any circumstances" test applied by the Court of Appeals, and
the Court of Appeals therefore erred in that regard. Id. We take the
same view here.

With respect to Friends' argument
concerning the applicability of the deferential standard of review set out in Chevron,
we agreed with the Court of Appeals that, in evaluating the commission's
interpretation of the Act, it is appropriate to apply that standard. Id.
at ___ (slip op at 20-21). We see no reason to repeat that discussion here,
particularly because nothing in our review in this case implicates or requires Chevron
deference.

We turn to Friends' substantive
challenges to the commission's final order. As noted, Friends' objections are
two-fold. Friends contends, first, that the Court of Appeals erred in
concluding that the commission met its obligation under OAR 350-050-0030(3) to
ensure that there is no practicable alternative to PA 05-02 more consistent
with the Act. Second, Friends asserts that, to the extent that PA 05-02 allows
new commercial uses and development in areas not zoned for such uses, it is
inconsistent with the Act and the Court of Appeals erred in concluding to the
contrary. As we shall explain, both of Friends' arguments rest on faulty
assumptions.

The commission responds that it
considered the alternatives that Friends submitted as a "package," that
nothing in the rule precludes it from considering them in that manner, and that
it gave due consideration to all parts of that package, even if it did not refer
specifically to some of the parts on its list of the package's "key
elements" in its final order. And, having done so, the commission claims
that it correctly concluded that Friends' proposed alternatives were no more consistent
with the purposes and standards of the Act than PA 05-02, insofar as the text
of PA 05-02 permits certain new commercial uses of historic properties
"subject to compliance with the applicable guidelines to protect scenic,
cultural, natural, and recreation resources." Management Plan, Part II,
ch 7 (General Policies and Guidelines), Special Uses in Historic Buildings, GMA
Guidelines, Additional Review Uses for Historic Buildings. In other words, the
commission concluded that none of Friends' suggested alternatives ultimately would
better serve the Act's dual purposes of protecting resources while at the same
time protecting and supporting the economy of the area by allowing a measure of
economic activity.

As the commission's response accurately
suggests, the premise of Friends' argument is fallacious: the fact that the commission
did not describe in the final order all the details of Friends' proposed
alternative does not, without more, mean that the commission did not evaluate
those details. As Friends itself points out and as the record reflects,
Friends submitted a multi-part alternative proposal, along with a complete
explanation of the impact of the various permutations, to each commissioner
during the plan amendment comment period. The commission's final order states
that the commission considered Friends' proposed alternative. It is fair to take
the commission at its word that it gave due consideration to all parts of Friends'
proposal, and Friends has not identified any reason not to do so.

Finally, Friends argues that the
Court of Appeals erred in concluding that PA 05-02 is "consistent with the
purposes and standards of the Scenic Area Act." OAR 350-050-0030(2). According
to Friends, the Act "allow[s] large-scale commercial uses and development
only in urban areas and areas zoned for such uses," yet PA 05-02 permits
numerous types of new commercial uses and development, including restaurants,
bars, hotels, and wineries, in nearly the entire GMA, including on land zoned
for agricultural, forest, recreational, and residential purposes, "without
the suitability analysis required by the Act." Moreover, Friends argues,
the commission did not zone particular areas for the commercial use of historic
buildings, as Friends contends the Act requires, nor did the commission limit
the scope of the plan amendment to areas already zoned for commercial uses. Finally,
Friends contends that allowing commercial uses of historic properties
throughout the GMA undermines the second purpose of the Act, which is to
encourage commercial activity to occur in existing urban areas.

The problem with those arguments, as
the Court of Appeals correctly observed, is that the Act does not contain the
restrictions on commercial uses for which Friends contends. Friends points to
16 USC § 544d(b)(5) as authority for its position that the Act requires the commission
to confine commercial uses and development outside of urban areas within
specific areas designated as commercial zones. Section 544d of the Act
generally describes what must be included in the management plan. Subsection
(b) of that section provides:

"Within two years after the Commission is
established, it shall develop land use designations for the use of non-Federal
lands within the scenic area. The land use designations shall

"* * * * *

"(5) designate lands in the scenic area
outside the special management area used or suitable for commercial
development: Provided, That such designation shall encourage, but not require,
commercial development to take place in urban areas and shall take into account
the physical characteristics of the areas in question and their geographic
proximity to transportation, commercial, and industrial facilities and other
amenities."

We also fail to see how permitting
certain new commercial uses of historic properties in the scenic area "undermines"
the Act's stated purpose of "encouraging growth to occur in existing urban
areas." 16 USC § 544a(2). Friends' contends that owners of historic
buildings engaging in commercial uses of those properties will compete with
businesses in urban areas, to the detriment of the urban businesses. That
argument is completely inapposite. Even if the amendment can be viewed as
encouraging commercial use of historic properties outside of existing
urban areas, that result is not inherently inconsistent with the Act's second
purpose to encourage commercialdevelopmentin urban
areas. And it certainly does not violate any provision of the Act. It follows
that the Court of Appeals correctly concluded that Friends failed to identify
how the plan amendment permits anything that the Act prohibits.

The decision of the Court of Appeals and
the order of the Columbia River Gorge Commission are affirmed.

3.The
phrase "general management area" is not defined in the Act, but the
commission uses that phrase throughout the management plan to refer to the
remaining land in the scenic area. In addition, the statute that the Oregon
legislature enacted to implement the Act, ORS chapter 196, defines the phrase
to mean "the area within the scenic area that is not an urban area or
special management area." ORS 196.105(2).

4.The
commission's rules also are on file at the commission's office and can be found
on its web site, at http://www.gorgecommission.org/otherrules.cfm. The
commission amended its plan amendment rules in 2006, after its adoption of the
plan amendment at issue in this case, to, among other things, change the order
of the second and third amendment criteria in OAR 350-050-0030, and in other
ways that do not change our analysis of this case. Accordingly, we refer to
pertinent rules using their current OAR citations.

5.As
a practical matter, the only property in the scenic area that would have
qualified under the applicant's proposal to engage in the specified commercial
uses was the View Point Inn, because that was the only property on the National
Register for Historic Places prior to November 17, 1986, that originally was
used for restaurant and hotel purposes.

6.The
survey revealed that there were four properties in the scenic area that were
listed on the National Register of Historic Places, all of which were located
in Multnomah County. In addition, 18 properties in the scenic area previously
had been determined to be eligible for listing under the criteria set out in 36
CFR § 60.4 for listing in the National Register, and 36 others were deemed to
be potentially eligible for listing.

7.In
the final order, the commission noted that the survey that it had commissioned
revealed that, since the adoption of the management plan, many historic
buildings, including some significant ones, had already been lost through
demolition or incompatible alterations, and others were threatened by disuse or
poor maintenance. In addition, the consultants who conducted the survey
interviewed the owners of properties either on or eligible for listing on the
National Register, and observed that virtually all of them were concerned about
the high cost of restoring, rehabilitating, and maintaining historical
buildings in a manner that would preserve their historic integrity.

8.In
this opinion, when we refer to the "management plan," we are not
referring to a particular paper document, but to the entire body of law that
comprises the management plan, including revisions and amendments that
currently are in effect. An up-to-date version of the management plan is
available online at http://www.gorgecommission.org. When we cite
provisions in the management plan in this opinion, we make an effort to give
sufficient information to permit the reader to find the provisions we discuss,
but we do not attempt to refer to a particular document, online or on paper, or
to any page numbers therein.

11.The
Court of Appeals understood Friends to be arguing that, because the commission is
required to conclude that "no practicable alternative exists," it
must consider and reject "each and every conceivable alternative." The
court rejected that argument, concluding that that requirement means only that
the commission must exercise some measure of discretion and act reasonably in
the circumstances. Friends, 218 Or App at 249. Friends does not
challenge that interpretation here. Rather, Friends contends only "that
the commission must evaluate specific alternatives presented to it," but
did not do so in this case.

12.Friends
does not engage in any kind of interpretive analysis of the words "must
find" in OAR 350-050-0030 to show that those words mean that the
commission must make specific findings in its order individually rejecting each
alternative that was presented to it.

13.Friends
also seems to argue that PA 05-02 conflicts with certain provisions in the
management plan as it was originally adopted in 1991, limiting commercial
activities to areas designated for such activities. That argument, however, is
a non sequitur, insofar as any amendment to the management plan, by its
very nature, likely will be inconsistent with the original terms of the
management plan.